MADISON, Wis. (AP) — The Wisconsin Supreme Court was set to consider Thursday whether to remove a conservative Department of Natural Resources board member who refuses to step down even though his term ended almost a year ago.
The justices were set to hear oral arguments in Democratic Attorney General Josh Kaul’s lawsuit seeking to oust Fred Prehn from the board. The case could define the extent of Wisconsin governors’ appointment powers as well as environmental and hunting policy for several years.
Prehn has said he doesn’t have to step aside because the Senate hasn’t confirmed Democratic Gov. Tony Evers’ appointee. The Republican-controlled Senate adjourned its two-year session this week without even scheduling a confirmation hearing, effectively preserving a one-vote conservative majority on the DNR board.
Former GOP Gov. Scott Walker appointed Prehn, a Wausau dentist, to the DNR board in 2015. His six-year term ended on May 1, 2021. Evers appointed Sandra Naas to replace him.
Prehn has said a 1964 state Supreme Court decision established that gubernatorial appointees don’t have to vacate their positions until the state Senate has confirmed their successor.
Kaul filed a lawsuit in August seeking a court order to remove Prehn from the board. He contends that state law explicitly allows the governor to fill positions with provisional appointments without Senate confirmation.
Kaul also argues that Prehn’s refusal to leave encroaches on the governor’s power, violating the separation of powers between the executive and legislative branches.
Dane County Circuit Judge Valerie Bailey-Rihn sided with Prehn and threw out the case in September, saying Wisconsin citizens are the losers when the Legislature won’t hold confirmation hearings. Kaul asked the state Supreme Court to take the case directly and bypass lower appellate courts to address “time-sensitive issues” that Prehn’s refusal to step down has created. Prehn also asked the justices to resolve the case directly.
Prehn’s presence on the board ensures that Evers’ liberal appointees can’t determine environmental policy for the state until at least May 2023, when three other Walker appointees’ terms end. If Evers survives reelection this fall, he will get to appoint their successors.
If the Senate remains under Republican control and won’t confirm the replacements, they may not leave, either, making the Supreme Court’s decision in Prehn’s case that much more pivotal for environmental and outdoor policy moving forward. Prehn’s votes already have helped preserve the conservative majority’s moves to scale back restrictions on PFAS chemicals in state waters and increase the quota for the fall wolf season. A Dane County judge ultimately put the season on hold and it was canceled outright after a federal judge in February put wolves back on the endangered species list.
Prehn also will play a pivotal role in revising and approving the DNR’s new wolf management plan later this spring. That plan could contain key population goals that will govern hunting quotas should wolves lose their federal protections again.
With the future of the state’s environmental and hunting policies at stake, conservatives and environmentalists alike are closely watching Kaul’s lawsuit. Republican legislators have joined Prehn as defendants in the case. The Humane Society of the United States and the Center for Biological Diversity has filed friend-of-the-court briefs supporting Kaul’s position.
Midwest Environmental Advocates, another conservation group, filed its own lawsuit in October seeking access to Prehn’s text messages about his term on the board. Dane County Judge Everett Mitchell refused to dismiss the lawsuit Tuesday, ruling that Prehn is a state officer and his texts qualify as records.
MEA has already obtained Prehn emails through an open records request that show Prehn consulted with Republican lawmakers and lobbyists about staying on the board.